Property
Class Notes
More on Charlton
Let’s
finish with adverse possession! What
happened in this case? The Crockers
bought two lots in a subdivision. They
cleared some brush off of some adjacent lots (to prevent fires) and tried to
establish adverse possession. They also
left some junk on the other lots. They
want to claim that they have acquired these other three lots by adverse
possession. They don’t have color of
title.
The
Crockers lose! How come? The judge thinks they’re liars! Once you look up “tergiversation”, you sort
of know who’s going to win.
So
why do the Crockers lose? They lose
because they weren’t adverse. Well, how come? What does it mean to be an adverse possessor? The main issue here is “claim of right”. But what’s that?
The
idea is that it doesn’t matter whether you believe that you’re taking the true
owner’s property in order to get adverse possession. It only matters that you believe that you
possess the property in your own rights. You possess the way an owner would possess. If you know
that what’s you’re doing is adverse possession, you know “more than you need to”. It’s not fatal to act willfully, but it might
cast suspicion on some of the elements of adverse possession, as it does in
this case.
What
was Crocker really doing? It seems as
though he’s going after a windfall. It
looks like they are trying to “massage” the facts into adverse possession.
The
court believes that the Crockers didn’t enter the land in question with the
intent to occupy it as an owner. This is fatal to their adverse possession
claim. The court finds it important to
note that Mrs. Crocker admitted that there were sensitive to the other lots
being “somebody else’s”.
Note
that “adverse” means substantially the same thing as “hostile” or “wrongful”.
The
court looks at a number of factors. The court
finds that the original entry was permissive
rather than adverse (they called and
asked someone, not the true owner,
for permission). The “setback problem”
indicates that the Crockers lacked the intention to possess. Also, in order to file a mechanic’s lien, you
must believe that the land you’re asserting the lien against belongs to
somebody else.
The
finder of fact in the trial court (the trial judge in this case) is in the best
position to determine whether the witnesses are credible.
Braunstein
thinks this is a closer case than it may appear.
He
says that all the requirements of adverse possession boil down to acting like the true owner of the property.
Note
that the mechanic’s lien was filed after
the prescriptive period ran.
Claim of right
This
is very confusing. In some cases, all it
means is that you’re claiming unequivocally
that you have the right to possession in your own right. In other words, there is no requirement of
good faith. But sometimes the courts go
further than that and require that subjectively
you must believe that you have a right to be where you are. The adverse possessor, in other words, must
show that they really believed it was their
land.
Some
courts go even further and make it nearly impossible to acquire title by adverse
possession. They say that you must be adverse, have a claim of right, but that you must be non-hostile in the sense that you’re not thinking of the true
owner. In other words, you must believe
you have a right to be where you are yet actually
not have the right to be where you
are. This gets very close to a Catch-22
and makes it almost impossible to acquire land by adverse possession (AKA “title
by larceny” among some of those who follow this rule). You would probably need color of title.
The
issue of what “claim of right” means cannot be resolved because it means
different things in different jurisdictions.
If
you believe that the purpose of adverse possession is to punish the lax owner,
you will not care much about the mental state of the adverse possessor. If, on the other hand, you’re out to reward a
diligent adverse possessor, then you might start asking more or less whether
the adverse possessor is a “good person”.
Braunstein
dislikes subjective intent because it’s easily manipulated. You can always just lie and no one would be
the wiser. Braunstein would set an objective standard of whether the possessor
acted like the true owner. But jurisdictions all over the place are split
wildly over this issue.
Don’t
let “claim of right” confuse you, because there’s basically no correct answer!
So
there’s a lot of disagreement.
Estates and future interests
This
is really tough!
Why
do we study this? For one thing, it’s on
the bar. Also, it actually comes up more
than you think. But we’re going to study
a lot of things before we get to rules that have to do with the validity of
various estates and possibilities of ownership in American law.
First,
we’ll learn to classify interests. Only
after we’re classified them can we apply rules which determine their
validity. The rules depend on the classifications. We will spend a lot of time classifying the different
interests people have created or tried to create. Then we’ll look at rules about marketability
of land.
You
can’t just do anything you want with land in Anglo-American land. There are only a certain number of estates
that are recognized, and you must fit your estate into one of the categories,
or it’s no good.
We have
a one-page summary of estates and future interests. It’s not going to be of much help yet, but
hold onto it for later.
This
topic fits in with the overarching concept of relativity of title. We have
seen this in eminent domain, capture, finders, and adverse possession. Now we’ll deal with these same issues in
contests between “co-owners”. That word
will mean something specific later. But
now all we mean is two or more persons owning an interest in a single property
at the same time.
What
we are talking about almost exclusively
about intra-family transactions, and
thus we’re mostly talking about gifts.
What
are some ways to divide ownership? We
can divide land the way it gets divided on a map. We could divide it into flat pieces and
parts. We could also divide the air,
surface, and subsurface (vertically). We
can give the air rights to one person, the surface rights to another person,
and the subsurface rights to a third person.
But
what we’re going to talk about now is dividing up land over time. The easiest example is the “non-freehold
estate”: the landlord-tenant relationship.
The tenant has the property for a time, and then it will revert to the landlord
at the end of that time. A will have the
property for a period of time, and then B will have the property after that.
Anglo-American
law separates possession and ownership. A
possessor doesn’t necessarily own the whole “bundle of sticks”. This can create some confusion! The possessor of the property isn’t
necessarily the owner of the property.
We
divide interests in land based on whether they are possessory or non-possessory. If it’s non-possessory, it’s a future
interest. “Future interest” means it’s
non-possessory but could become possessory at a later time. But a “future interest” is a current ownership. For example, a landlord owns a building, but
doesn’t have a possessory interest in the building. That’s a future interest, but it’s not the ownership that’s delayed, it’s just the possession that’s delayed.
Terminology
This
is like learning a foreign language. One
problem is that some of the terminology is stuff you think you already know because it has a “lay” meaning and a
different, more precise legal meaning.
So we’ll have new words to learn and also words we already know that we’ll
have to relearn for this purpose.
Heir – Heirs are defined by statute. Living
people have no heirs. We are not our
parents’ heirs if our parents are still living.
The heirs are not identified until the decedent dies (that’s what a
decedent is). It’s true that if your
parents die intestate and are survived by children, the children will be
heirs. But if, for example, the children
die first, they won’t be heirs. We won’t
be able to determine who fits into these categories until the death of the relevant person. You can’t be an heir unless you survive the
decedent.
Issue – Who are these people? It doesn’t mean children. If you mean children, say “children”. If you say issue, it means all direct lineal descendents. It only goes down: children, grandchildren,
great-grandchildren, continuing down theoretically forever. If you believe in Adam and Eve, then we are
all issue of Adam and Eve because we are direct lineal descendants. Adopted children are treated the same as
natural children for all purposes of the law.
But foster children or stepchildren are not descendants and thus not “issue”. Stepchildren don’t inherit from their
stepparents.
Estates
There
are only four kinds of estates!
1. The fee simple absolute –
This is the most complete form of ownership recognized by American law. It’s the complete bundle of sticks.
2. The fee tail
3. The fee simple defeasible –
These are fees that are capable of being defeated.
4. The life estate
These
are all the freehold estates. The
non-freehold estate is the landlord-tenant relationship. Those make up all the possessory estates.
All
of these, except for the fee simple absolute, are associated with a future
interest. Everything always has to add
up to 100%, and 100% equals a fee simple absolute. If you can’t add up back to a fee simple
absolute, you’ve missed something.
Pay
special attention to the problems as we go through the material.